[CPWG] Discussion of Capture is and always has been a legitimate topic at ICANN (was Re: ICANN Code of Conduct)
Evan Leibovitch
evan at telly.org
Thu May 2 08:23:11 UTC 2019
*TL;DR version:*
Q: Are capture and conflict of interest issues in ICANN fair game to
talk about?
A: Well, sure, but norms on these issues in the outside world are
gleefully ignored within ICANN. So good luck with your conversation.
*Long version:*
Well, this has been ... interesting.
First, a few disclosures:
- I have been involved in the Internet Society though many vectors. I
co-started a chapter, was the primary drafter of its most recent chapters
advisory council charter, and I have been recruited by ISOC staff to help
impartially resolve disputes in other chapters. All of this has been done
voluntarily. My involvement at this moment is negligible.
- I own or manage about a dozen domains, none of which are being held
for resale.
- While on ALAC I "benefited" from travel subsidy that nowhere near
covered the value of my time participating at ICANN conferences. I have
also gone to two ICANN meetings at my own expense, and I am one of only two
people I know (besides Sebastien) who has hosted ALAC social events at
their home.
- Codes of conduct and conflicts of interest are a thing to me. I created
the code currently in use <https://www.lpi.org/conduct> at my nonprofit
employer which addresses multiple contexts, and is an amalgam of a number
of other codes.
- Not only do I agree that the dot-org price cap should be lifted as a
significant matter of public interest, I advocate a sharp increase of the
fees that ICANN charges all registries for domains. I'd actually like to
set a minimum fee rather than a maximum. More details on the rationale can
come later, but this discussion seems well beyond the specifics of that
public comment issue.
Now to a few points:
1. Conflict of interest, in a governance context, has a more specific
definition than simply one's having conflicting interests (by being part of
multiple constituencies, perhaps). It means that someone's vote, or
advocated point of view, is driven by potential gain in either money or
power. If we want to strictly apply CofI principles, we find that Internet
Society chapters who are ALSs and whose members are not ISOC staff do *not*
have a direct conflict of interest, because their policy viewpoints would
not affect their income and power. Conversely, NGOs who protest the lifting
of the .ORG price cap are absolutely conflicted because they are defending
their own ability to pay as little as possible for domains. Their actions
are those of registrants, not end-users, and the issue of price caps is one
of those few where the interests of registrants and end users can be very,
very different.
2. I experience hand-wringing denouncements of conflict-of-interest
within ICANN with the sense of creepy entertainment that I get watching an
episode of Black Mirror. ICANN was built on a foundation of widespread and
openly visible conflict of interest and remains that way to this
day. *Nothing
is off-limits so long as you declare*. Quoting other constituencies'
harping about CofI within ALAC betrays a dangerous ignorance of both
history and culture. From the day At-Large began as an alternative to
direct public elections of the ICANN Board there has been a constant and
predictable effort within most of ICANN, including certain senior staff, to
de-legitimize us. The goal of that has been to preempt anything we might
say that dare disrupt the cozy compact between domain buyers and domain
sellers. Sadly, over the years ALAC has been so timid and self-censoring
that such belittling campaigns have proven largely unnecessary.
3. As for capture, I struggle to see it within ALAC. Despite a list of
flaws that I could take a book to detail, ALAC and the other ACs are by far
the least-corrupted components of ICANN. Elections tend to be robust, and
the NomCom factor works to reduce cronyism. If anything, ALAC suffers from
the same ills as many democratic entities in that often the politically
sociable will win over the duller policy wonks, and ALAC has traditionally
been wonk-poor. I myself once believed that there was ISOC chapter capture
until I saw just how freaking diverse the chapters are; considering them a
cohesive interest bloc within At-Large, once one looks at the reality, is
laughable. Just because a group has reached a conclusion with which one
disagrees doesn't make it "captured" without further evidence of
manipulation.
4. Of *course* complaints are legit that a poorly-resourced 25-person
ALAC/RALO council can't possibly do a fantastic job representing "the
billions". Yet it does sorta OK with what it's given, considering that it
has no discretionary budget; ALAC-approved projects have been rejected by
ICANN without reason. I have always wished that ALAC got more involved in
public polling and education to better know with confidence what the global
public wants from ICANN, but (a) doing that is expensive and (b) I'm quite
sure ICANN really doesn't want to know this information. I also note that
ALAC is the only constituency within ICANN that has forced geographic
diversity.
5. Small nit that I couldn't let pass, even though the point is
irrelevant: The assertion that "*nothing would stop ISOC/PIR from
selling out to private equity*" is bullshit. Conversion of a nonprofit
body to a for-profit is impossible or horribly difficult in most
jurisdictions, and even transfer of assets would quickly come under the
disapproving eye of regulators. I've seen some attempts first-hand and they
didn't end well.
Cheers,
Evan
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